Jeffrey P. Gale, P.A. // Exception to Incident Report Work-Product Privilege

Litigants seek probative evidence to prove their cases through procedural discovery methods. In personal injury cases, incident reports describing the circumstances of the accident typically contain valuable information.

Defendants usually oppose turning over incident reports to plaintiffs. The argument is that the incident report was prepared in anticipation of litigation and, therefore, is protected by the work-product privilege. See Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“Incident reports, internal investigative reports, and information gathered by employees to be used to defend against potential litigation are generally protected by the work-product privilege.”).

It is the trial judge’s job to resolve discovery disputes. The procedure for resolving a dispute involving an incident report is for the trial judge to conduct an in camera inspection of the report to determine whether it is discoverable. An in camera inspection is a procedure by which a judge inspects evidence outside the presence of the litigants or third parties. One of its main purposes is to prevent any “cat out of the bag” evidentiary mishaps. The standard on which the court relies to make the determination is set forth in Florida Rule of Civil Procedure 1.280(b)(4). In relevant part, the rule provides:

[A] party may obtain discovery of documents and tangible things otherwise discoverable… and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney… only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means…. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party…. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it….

Whether an incident report should be produced was addressed in IMC Hospitality, LLC v. Ledford, 337 So.3d 104 (Fla. 3rd DCA 2021). Respondent Ledford (who is the plaintiff at the trial level) slipped and fell in petitioner IMC Hospitality, LLC d/b/a Pollo Tropical’s restaurant. IMC objected to his formal discovery request for a copy of the incident report. Conflicting evidence was presented to the trial judge concerning who authored the report. Even though the report was not signed by Ledford, the judge decided that he “adopted or approved it” and was thus the author. Fla. R. Civ. P. 1.280(b)(4) (“For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it….”).

By showing he was the author, Ledford circumvented the section of the Rule requiring the following showing:

need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means….

Had Ledford not shown himself to be the author, it is unlikely he would have gotten the report. See Winn Dixie v. Lopez, 46 Fla. L. Weekly D2570 (Fla. 3rd DCA Dec. 1, 2021) (“Upon closer inspection, we conclude that the incident report contains no witness statement, as contemplated by Florida Rule of Civil Procedure 1.280(b)(4). The trial court’s order departs from the essential requirements of law and impermissibly requires production of an otherwise work-product protected incident report.”).